Private Drug Use and Concomitant Acts – A Discussion on their Sanctionability

· Law
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This article is inspired by a section of the Argentine Constitution; and separately, by the ever-increasing list of countries which have decided to decriminalize marijuana consumption. Our focus is only theoretical-philosophical; and it intends to invite further thinking on the subject.  We have included the issue of drug use, as it is doubtful that the average reader outside of Argentina, or at least South America, cares to consider a document of the type which is flamboyant in its pretensions, but delivers only to the degree that subsequent legislation and case law permit. On the other hand, this inclusion allows for an easily-understood and not overly-controversial example of the problem under consideration. We refer specifically to marijuana because it is the one which is gradually – if grudgingly – gaining acceptance in one country after another; but what we say about this can equally apply to any drug.

In part, Section 19 of the Argentine Constitution is applicable in other countries, even if the latter do not explicitly formulate it: private acts of individuals which do not offend the public order or morality are left to God’s judgement, and not to the criteria of those in charge of human tribunals. No one living in the country is obliged to do what the Law does not prescribe, nor is anyone denied the right to do that which is not proscribed.*

It is the second sentence of this section which is more specifically echoed in other countries.  It does contain a fundamental weakness, in that citizens (or foreign inhabitants) may not know all the laws.  This is self-evident, if we can believe the claim made with a certain regularity that the typical American breaks an average of three laws a day, usually unknowingly. [L. Gordon Crovitz, “You Commit 3 Felonies a Day”, Wall Street Journal, (updated) Sept. 27, 2009, https://www.wsj.com/articles/SB10001424052748704471504574438900830760842, accessed June 21, 2019.]

A second weakness of the latter part of the sentence is that it seems not to consider tourists.  This may seem to be a pedantic observation, but is based on a comment by one of this writer’s history teachers: that laws are limited to what they state, and that one can be victimized by what has not been stated.  (Ironically, he used this as an argument for an unwritten Constitution;  although in hindsight, the teaching he intended to impart may have been severely simplified for his first year secondary school students.)

The first part of this section of the Argentine Constitution has always suggested to us the idea that this document was not the work of individuals which one supposes to be adherents of the official religion of the country – Roman Catholicism.  (Article 2 of the Constitution)**. Only now is the work of a gradual separation of Church and State being prepared.  At any rate, the statement, as this writer sees it, is a slap in the face of religious orthodoxy, as it clearly allows for private vices which were not incorporated into the body of law.  Which these are need not be is not of interest to us, as under the law, these are all treated the same way. This is the point which allows for the discussion of the admissibility of private drug use in any country.  It may also be useful for the reader to know, that the seeming permissiveness of the private acts provision has not exempted the personal use of marijuana in Argentina until very recently.  We might even consider, by comparison, my former province – Ontario, in Canada – where the right to drink alcoholic beverages on one’s own property did not extend to permitting it to be done on the front lawn in the 60s and 70s of the last Century.  [Apparently still valid: see Frances Woolley, “What’s Wrong with Drinking in Public”, Worthwhile Canadian Initiative, Jan. 30, 2013, https://worthwhile.typepad.com/worthwhile_canadian_initi/2013/01/whats-wrong-with-drinking-in-public.html, accessed June 21, 2019.]

We’ll get back to marijuana in a moment, after finishing with our reflections on Section 19. We have just stated, that on the face of it, the organic law of the country was written not by practicing Christians of any variety.  It may easily have been the brainchild of Deists or Freemasons who were allowed a very free hand in its redaction. (An insufficiently-explained mystery is how the an alleged Mason can have been interred in the Cathedral of Buenos Aires – it has been suggested that that part of the building is not part of the church.)  However, a completely different reading could be made of this part of the Constitution – defective only to the degree that it needs to be confirmed by what the Argentine legal profession would emphasize as the “intent of the legislator”.

We could argue that the private acts supposedly referred to – at least for most of them – are not private acts at all.  How so?

Let us imagine a so-called private party. We again may be accused of being pedantic, but if the police are called to quell a disturbance, it is no longer so private.  It has become a public affair.  Even if the purpose was eminently private, someone, somehow, could make it somewhat public.  This becomes clearer in our comparisons to the consumption of drugs or alcohol – in the latter case, we have seen that private property is not private enough for the law desist from interfering with the drinker.

But let us now consider something which most of us might reasonably consider to be “private” – an (ahem!) immoral movie, whether at the party mentioned in the previous paragraph, or at another venue.  Shall the doors be locked, and all subjected to the show? Shall those who would prefer not to see it be allowed to leave, either at the beginning, or at any time that they feel that they have had enough? Assuming the showing of the film were legal, would the word “private” strictly be applicable when one is under no obligation to keep quiet about what was going on, all the more so, since there was no law against it?

At what point, exactly, does an activity become private?  Will it be a group of four, three, or two?

We could argue that the second person might not have been as willing to the activity as the first person imagined.  Consider the denunciations recently made in Hollywood against directors.  Surely they thought they had something private and perfectly legal going on, sanctioned by their profession and tradition.

Finally, to completely do away with the idea that even one person can commit a private act; we suggest that the discovery of said act makes it private no longer.

On the basis of the preceding, we can come to drugs, of which we mention marijuana as the one of most interest to the majority (with cocaine probably being a close second. (If I am wrong, it is because I am not investigating habits here.)

Let us assume that a country, a state, a province, or a city makes the private consumption of marijuana legal.

Someone decides to enjoy the newly-legalized cigarette, as opposed to those traditional ones now made practically criminal to possess.  The smoke comes to one’s nose, and the person affected thereby objects – at least mentally.  This movement of smoke and gases over to another would suggest that the possession was not confined to private use.

Worse, is the case of the smoke being so strong that it permeates clothing, and makes the wearer out to be a user, thus damaging his or her reputation.  There was once (if not anymore), at a British airport, a machine so capable of detecting such small quantities of drug residue that its use for such a purpose had to be discontinued.  If the marijuana or cocaine were strictly confined to private use, such incidents would be impossible.

To our way of thinking, a question asked of Professor Walter E. Block, a libertarian, “Subject: Are Foul Smells or Pollens a Violation of Property Rights?” elicited the answer that it depended on who was in the area first.  If we have been pedantic at any point here, we see both the question and the answer as worse: the former referred to marijuana, which we do not find as a “foul” smell; the latter ignored, at a minimum, the possible legal repercussions for the “victim” of the odors. (This article was found much after our own questioning of the subject began.)

In our present panopticon of a world, we conclude that there are no private acts.  Therefore, a private act, understood as permissible in some Utopia of the past, could reveal, with the technology of the present – even if to a very limited public, the commission of a felony.  As such, the State may decide to sanction, i.e. punish it, as opposed to permitting any apparent sanctioning (approval) such as stated in the Constitution to which we have referred.

June 20 -21, 2019

© 2019, Paul Karl Moeller.  All Rights Reserved.

*To avoid any possible challenges on copyright grounds, we have reworded the relevant text.  An English translation at the time of this writing was found at http://www.biblioteca.jus.gov.ar/argentina-constitution.pdf and at http://www.track.unodc.org/LegalLibrary/LegalResources/Argentina/Laws/Argentina%20Constitution%201853%20(as%20amended%201998).pdf, the latter being on the United Nations Office on Drugs and Crime website (http://www.unodc.org/unodc/en/index.html)

** As sources vary, the terms “Article” and “Section”, as used here, are synonymous.  Both of our references to the Constitution are from the First Part, Chapter One.

Undated sources were accessed June 20, 2019.

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